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Thursday, 8 December 2016

Mr Philip Lindsey, a 91 year old motorist, has been ticketed by NCP apparently for paying on entrance rather than on exit. When Mr Lindsey arrived at the car park, he paid the £1.50 tariff for a daily stay. The system requires you to enter your registration plate and only accepts plates which are in the car park. it is therefore unlikely Mr Lindsey made a mistake unless the machines are themselves faulty.

He stayed a few hours and then left within the time paid for.

A few days later he received a charge for not paying on exit.

The signage does not require you to pay on exit - only to "pay for the required length of stay".

Mr Lindsey appealed to NCP who refused to cancel the charge.

Prankster Note

In the Pranksters opinion NCP had no cause to obtain Mr Lindsey's personal data from the DVLA as no contravention has occurred. It is NCP's responsibility to make sure their systems work; not the motorists. NCP further compounded their mistake, causing distress and harassment by not cancelling on appeal.

Mr Lindsey may therefore well have a claim against NCP for a breach of data protection. A sum of £250 would appear to be appropriate.

In the Cutts case evidence was presented to show that in the three years from 2008 to 2011 Excel issued a total of 11,498 parking tickets to drivers who had parked at the Peel Centre car park without paying and displaying. But, by comparison, this council car park in the centre of town, similar in size to the Peel centre, but with pay and display nine times larger, issued only 3000 tickets for not paying and displaying in the same time. It is clear therefore that Excel's signage was deficient in 2010.

In some cases BW Legal have been claiming later signage was in place when it was not. A useful tool in this regard is Google Streetview. This has an archive function which goes back to 2010. The signage is somewhat blurry, but good enough to tell that this signage photo submitted by BW Legal...

...was different to the signage actually in place at the time.

When you receive photos of signage from BW Legal you should therefore check them using Google Streetview and raise a complaint if they are not accurate.

It is also worth remembering that the Peel Centre is divided into 3, so the signage BW Legal submit must be from the area the car was parked, not from the other 2 areas.

The signage is the element which potentially forms a contract with the motorist, so if BW Legal submit wrong information in court claims they are essentially misleading the judge.

Signage coverage

The Peel Centre is the single most complained about carpark in the Prankster's postbag. Excel parking regularly issue tickets due to failures of their own machines to properly record ticket purchases, and when their ANPR fails to record double visits. Additionally, the car park is extremely poorly signed, so many people do not realise it is pay and display. This map shows how most spaces in zone one are too far from the signage. Worryingly, some of the worst-signed areas are for disabled drivers.

Did BW Legal file a witness statement in your claim with inaccurate photographs? If so, contact The Prankster at prankster@parking-prankster.com

Wednesday, 7 December 2016

Mr Phillip was being driven to the Liverpool Rowing Club one day when the driver took a wrong turn, ending up on Liverpool International Business Park. Realising her error, she turned around, and in this 32 second manoeuvre, was caught on camera by VCS who issued a Parking Charge Notice for a non-parking event.

An initial appeal was rejected, as was an appeal to POPLA, as VCS were members of the BPA at the time.

VCS sent this through the gamut of debt collectors and the matter ended up as a BW-Legal Roboclaim. Unusually, the Defendant wanted to not only win the battle, but also take part in the war, and with The Prankster's assistance filed not only a solid defence, but also a counterclaim.

1) There is no contract. The signage forbids parking, even for an instant, and therefore there is no consideration. There have been a number of similar cases recently including UKPC v Masterson and PCMUK v Hall et al. This therefore is a case of trespass, and in such cases only the land owner can sue, and then only for actual damages incurred. Where there is no damage a nominal £1 is usually awarded2) Even if the signage did offer a contract, the font size is too small and the words too many to be safely read while driving. They can therefore only be read while stopped and the normal time allowed in these situations is 5-10 minutes in car parks to allow for a genuine meeting of minds and for the driver to understand and comprehend any potential contract. There can therefore be no contract entered into by consideration.3) Even if a contract was entered into by consideration, the signage does not contain the information required by the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. As per clause 13(1), without this information any contract is not binding on the consumer4) Even if the contract was binding, the charge is a penalty and an unfair consumer charge. ParkingEye v Beavis is the leading authority on this. Although ParkingEye won the case, the judgment makes it clear that if the charge is not to be a penalty/unfair consumer charge, the driver must have ample time to be able to read and digest the contractual terms so that they can fairly agree to the terms. As this has not happened the charge is not saved from being a penalty/unfair consumer charge, and unless VCS have incurred costs of £100, the charge is excessive.

The counterclaim was based on the paperwork not being compliant with POFA and there being no possibility of a legal parking charge and therefore there was no "reasonable grounds" to pursue the keeper or driver, such pursuit being a breach of section 13(2) of the Data Protection Act 1998.

BW Legal offered a generic "no it isn't" reply to defence and counterclaim which did not answer any of the points raised in the counterclaim.

Mr Phillip filed a witness statement which included a video showing the signage from the driver's eye view, essentially proving there was no possibility that the driver could enter a contract as the signs were neither readable nor even particularly visible. He also filed as evidence relevant extracts from the Department Of Transports guides for signs on the highway. He made arrangements with the court to show the videos during the hearing.

Faced with this overwhelming defence, BW Legal discontinued the claim 12 days before the trial. Unluckily for their client VCS, they appeared to forgot there was a Counterclaim.

As the Prankster was busy with "real life (tm)" at the time, he invited a professional "Parking Terrorist", John Wilkie of Private Parking Appeals, to assist the Defendant (now the claimant in the Counterclaim) on the day. The day was today, so Mr Wilkie left Glasgow quite early to be at Liverpool County Court by 10am.

There were a number of VCS cases at Liverpool today. Messrs Pickup and Worthington and Ms VanDays were all present, but none of them were instructed in this matter. The parties were called in on time at 11.30! Mr Wilkie did have to pick up his jaw from the floor on the way into court as a result.

With no attendance from VCS or their solicitors, the Judge invited Mr Wilkie to lose the case on his own. He argued:

1) The Claim was not valid in the first instance, as the signage did not offer a parking contract, the 32 second stop was well within the 10 minute grace period, and while the ATA Code of Practice may not form a part of the Law, it DOES form part of the KADOE contract allowing reasonable cause. As such, as the CoP was breached, there were no reasonable grounds under regulation 27 for the Parking Company to seek keeper information, and this was a breach of the Data Protections Act, section 13(2)

2) Additionally, Section 13(2) does not require proof of damage, only proof of breach. Damages follow, as the court confirmed in Google v Vidal-Hall. The judge was already fully aware of this case, and cast only a brief glance over Mr Wilkie's copy.

3) Damages must be sufficient that the process of law, and the intent of the Legislation is not brought into disrepute (Purves v Joydisk Ltd[Scotland]). Nowadays, £250 is an appropriate sum to award as "nominal" damages, but sufficient to show the court's displeasure at the breach such that justice is seen to be done.

4) As such, the conduct of the claimant, in pursuing then discontinuing, and not answering the counterclaim was entirely unreasonable, and smacked of Rookes v Barnard 1964, such that Exemplary or Punitive damages ought to be awarded at ten times the initial counterclaim. This is also
supported by CPR 16.4. In deference to his duty to the court, Mr Wilkie immediately conceded that this had not been pleaded earlier, and the Claimant had no opportunity to answer this point if the judge was persuaded of its validity.

5) Finally, Under rule 27.14(2)(g) the defendant ought to be entitled to punitive costs, again for the unreasonable conduct of the Claimant in failing to attend or even have the courtesy of excusing its attendance.

In giving judgment, the Judge mentioned Mr Wilkie's "helpful submissions" and was happy that he had ably assisted the Defendant.

1) The claim by VCS, having been discontinued, is dismissed.

2) The Claimant did not have reasonable grounds to pursue the keeper - this was not a parking event, it was a stop to turn which is necessary, and implicit in a right to pass and repass. The evidence of the Defendant has not been challenged and is on its face entirely honest and reasonable. As such, the DPA breach is proven.

3) The Defendant did not need to show, or quantify damages, Google v Vidal-Hall makes it clear that damages follow the breach.

4) The quantum sought by the Defendant was entirely reasonable, pleaded from the start, and there was nothing before the court, either from the Claimant or in binding case law to go behind this figure and examine it. Accordingly, the defendant has judgment in his counterclaim in the sum of £250.

4) The conduct of the claimant did not, in this case (and in the evidence before the court), cross either the threshold of Unreasonable conduct for rule 16.4, or rule 27.14(2)(g) and so the Defendant was only entitled to nominal costs of £104.40.

The total judgment is £354.40, payable within 14 days.

Mr Phillip was delighted, and celebrated with an Americano with Milk, courtesy of Mr Wilkie. It is rumoured that Mr Wilkie's head has not yet arrived back in Glasgow, having been too big to get through the courtroom door.

John Wilkie' comments

"This was a critical case for the 'parking terrorists' as we have argued that the Parking Companies are breaching the DPA on a number of occasions, and this has now been confirmed by the courts. They MUST comply with the KADOE contract, and the ATA CoP to be entitled to Keeper details, andfailure to do so, such as in Excel v Mr C at Stockport, will open them up to legal action."While this decision is not in itself a Precedent, the Google v Vidal-Hall ruling IS binding on the lower courts, as is ParkingEye v Beavis which deals with the ATA CoP being part of the conditions that the PPC must meet (Para 94-95)"Parking Companies will have to now understand that, even after issuing proceedings, they can be attacked on their conduct, and in the event of a loss, it would be possible for the winning defendant to issue a claim for this breach regardless of any previous hearings."Where there are parking companies selling their 'debts' to unregulated, unregistered companies like ZZPS or MIL, then it is possible to bring a clam against both the PPC and the Debt Collectors, before they even issue their claim against you.

Prankster's Notes

This is an important case, and although not binding it does establish that where a parking company has no legitimate grounds to pursue a parking claim, they are committing a breach of the DPA.

It also establishes that £250 is a reasonable minimum amount to claim, although of course higher amounts can be claimed if justified.

Any motorist who has won a parking claim in court, or has had a parking charge cancelled by POPLA** or who has been issued a charge for stopping at Liverpool Business Park can consider issuing a claim against the parking company. The Limitations Act will apply, so this can only go back 6 years.

A number of parking companies issue claims and then back out at the last minute. Although costs are sometimes awarded against them, this is not always the case leaving defendants out of pocket and having spent time and energy for nothing. Issuing a counterclaim forces a hearing which means the defendant can claim costs.

A number of parking companies also play the numbers by failing to cancel an initial appeal, but folding at POPLA. Motorists can file claims against these companies too if a DPA breach has occurred.

Happy Parking

The Parking Prankster

**both motorists who have had a parking charge cancelled by the IAS can also counterclaim

00:07-00:10 For comparison, here is a proper road sign. You can read all the words.
00:14-00:17 Here is another proper sign. You can read all the words
00:28-00:31 Here is the main VCS sign. You can only read the words 'No Stopping'
00:35-00:36 Here is a subsidiary VCS sign. You cannot read any words as the sign does not face traffic and the driver would have no indication of what this refers to.

It is clear that no competent legal professional would ever contemplate a charge could be valid in this type of case. Firstly, it is not possible to fully read the signs while driving past at normal road speed. A key criteria for a contract to be in place is a meeting of minds, and this can never be in place if one party cannot read the contract. The normal time given for this in a car park is five minutes once the vehicle is stationary; not 2 seconds in a moving vehicle.

Secondly, the signage is in any case forbidding and makes no offer. As it says 'No Stopping' there is no offer to stop. There is therefore no contract, but this would make anyone stopping a trespasser.

Thirdly, the charge of £100 is a penalty and unfair consumer term. The case of ParkingEye v Beavis [2015] UKSC 67 is the leading authority on this, and it makes it clear that the penalties law is in play for charges of this size. It also makes it clear that a motorist must have a fair chance to read the signs and accept the bargain; otherwise the term is unfair.

It is also worth pointing out that from 00:28-00;30 a competent motorist would be keeping half an eye on the dog, in case it ran out, and not on the signage. The presence of this type of signage is therefore a safety issue.

This facebook video shows is is dangerous to take your eyes off the road for more than 2 seconds.

This government publication on X-Height for road signs shows that the signs used by VCS are positioned too close to the junction, use fonts which are too small, contain too many words, and are positioned too low.

This Government publication further reinforces the minimum font sizes to use. Section 1.3 and appendix A are useful references for font sizes, height above ground and minimum clear visibility distances. At 30mph the sign should be 0.6m above ground, have 60m clear visibility and a font size of 8cm. The font size of the £100 charge is 4cm, or half the required size.

The Prankster suggests that any motorists taken to court for this site files the youtube and facebook clips, together with the government documents as evidence, and makes the above points in their defence.

If the keeper is not the driver then an additional point apples as VCS do not currently use the keeper liability provision of the Protection Of Freedoms Act 2012, sch 4. Therefore only the driver can be liable for any charge issued.

Unfortunately the flag and flagpole in question does not benefit from advertisement consent under the Town and Country Planning (Control of Advertisements) Regulations 2007 and the unauthorised display of advertisements is a criminal offence liable for prosecution. This could incur a fine not exceeding £2,500 for each advertisement displayed.

The letter was sent by Broxtowe Borough Council.

The Prankster is concerned why councils are happy to threaten members of the public for breaching advertising regulations, but turn a blind eye to thousands of breaches by companies in car parks up and down the country.

ParkingEye, for instance, according to their own employees, deliberately do not apply for advertising consent as this costs both time and money. They only retrospectively apply is they get caught out.

Many other parking companies similarly flout the regulations, even though their own code of practice requires them to conform.

2.4 When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.

This is of course unfair to those companies who do abide by the rules, as they will operate as a cost disadvantage to the abusers. This is also unfair to ordinary taxpayers. Councils are depriving themselves of much needed revenue by not demanding that car park owners pay the correct fees to apply for advertising consent, and by not fining habitual offenders £2,500 per advertisement displayed. This will have a knock on effect as if councils do not raise money to cover costs in one way, they must raise it in another, ultimately reflecting in the level of council tax.

The judge struck out the claim as Gladstone's Solicitors had not submitted proper Particulars of Claim.

Kevin McManus knew nothing about it as Gladstones clearly hadn't alerted him so that's yet more obscene incompetence on their part. The judge said this is not the first time it's happened and they have previously been warned about this. Kev apparently said well done as he was leaving!

Costs of £115.80 were requested; the judge awarded half.

Prankster Note

Gladstones use a suspected Roboclaim system where operators submit basic details and then this is used to make an automated template claim with little or no human involvement. A largely meaningless claim emerges at the other end

One of the main benefits to Gladstones of submitting this gobbledygook is that it is impossible to file a meaningful defence based on this information, giving their clients a huge advantage over unrepresented defendants.

The other benefit is that there is essentially zero cost involved in submitting a claim like this, as there is little or no human involvement and no due diligence to assess the merits of any particular claim. Although Gladstones add on £50 in Legal Representative Costs they have admitted in witness statements that this is not billed on to the client and that once a case is finished they decide between themselves how to divvy up the costs and returns. This therefore appears to be an easy way to artificially add £50 to every claim, meaning parking companies get a better return if a motorist is scared into paying up on receiving a court claim.

This of course encourages abuse of the court system.

The £50 charge was set long ago before the advent of roboclaims. The Prankster believes this fee is now due for a review, and that wholescale abuse could be prevented simply by reducing this charge to £5 for roboclaims. This would remove a major incentive to the roboclaim industry and would reduce the burden on the courts.

According to the Daily Mail a recent court hearing involved a type 2 diabetic driver who overstayed his car park time by six minutes because he became faint and stopped to check his blood sugar levels.

Despite appealing on this basis Kevin McManus from AS PArking refused to cancel the charge and took the motorist to court.

The driver brought medical evidence of his diabetes to court, but failed to submit it 14 days beforehand.

Kevin McManus refused to cancel the charge stating in court "It is a common condition and we don't want to open the flood gates and offer a get out of jail free card every time someone with a medical condition is issued with a charge."

Mr McManus then contradicted himself later on when asked by the judge whether he would have scrapped the fine had he received the note earlier. Mr McManus stated he would have done except for a £20 administration fee

The judge ruled that the evidence of being a diabetic was inadmissible and so on the balance of probabilities the driver was not diabetic. The £100 parking charge was upheld.

Prankster Note
This case underlines the Prankster's previous blog where he advised filing all your documents on time and not trying to ambush the other side.

According to this report type 2 diabetes is not a long term disability covered by the Equality Act 2010.
There was therefore no requirement to make a reasonable adjustment.

A further point is that the overstay was 6 minutes but the code of practice normally requires a 10 minute grace period. It might be that the signage makes it clear there is no grace period on this site, but a Google image from 2015 would appear that it does not.

15.2 Drivers must be allowed a minimum period of 10 minutes to leave a site after a prepaidor permitted period of parking has expired.15.3 The reference to 10 minutes in 15.2 above shall not apply where the period of pre-paidor permitted parking does not exceed 1 hour providing that the signage on the sitemakes it clear to the motorist, in a prominent font, that no grace period applies on thatland.

The Prankster is concerned about Mr McManus's claim that he would have scrapped the charge had he received the note earlier. Mr McManus has not been known to cancel chagres, and his company is described as "being aggressive, greedy cowboys who are only out to make money."

Knowingly providing false information to the court is of course perjury and The Prankster is interested in getting to the bottom of this.

On the face of it, Mr McManus's claim that he would have cancelled the charge is contradictory with his earlier statement that cancelling charges for medical conditions would open the flood gates.

It also does not appear to lie straight with the fact that the driver appealed on the basis of his diabetes and was flatly refused, without Mr McManus asking for any supporting documentation.

If you have ever been offered to have your parking charge waived by AS Parking for a £20 administration fee, please contact The Prankster. This would hold if the full charge is waived either for a medical condition or any other reason. Mr McManus is also welcome to contact The Prankster, seeing as he reads this blog, to provide statistical information regarding the number of charges waived.

On current evidence it would appear to The Prankster that Mr McManus is a lying, aggressive, greedy cowboy, willing to conceal evidence and perjure himself in court. If any evidence to contradict this appears, The Prankster will of course be happy to publish a right of reply.

About Me

The Parking Prankster is dedicated to putting the fun back into parking. Sometimes there is a serious side too, as the prankster highlights scams and ruses used by the darker side of the parking industry to part you from your money.
Please contact me with parking stories you think would make interesting blog posts either via email prankster@parking-prankster.com or my twitter feed, @ParkingPranks